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Draego v. City of Charlottesville

United States District Court, W.D. Virginia, Charlottesville Division

November 18, 2016



          Norman K. Moon United States District Judge.

         The Charlottesville City Council (“Council”), in an effort at responsive government, holds “matters by the public” periods at its meetings, during which a citizen can speak for three minutes on essentially any topic he wants. The subject-matter of this period is unlimited and unrelated to the meeting's agenda: As conceded at oral argument, people can “talk about totally irrelevant matters if they want to” that “may not even relate to the City.” Despite this breadth, the Council's rules prohibit seven topics or types of speech during public comment periods. The rule challenged here bans speakers from making “defamatory attacks on groups.”

         Plaintiff Joseph Draego is a local citizen who asserts that allegedly unfettered Muslim immigration into his hometown poses a public safety risk. He attempted to share his views with the Council on June 20, 2016. After first stating that many Muslims were good people, Plaintiff later, in explaining his anti-immigration view, said Muslims were “monstrous maniacs” who perpetrate “horrible crimes.” Citing the Council's group defamation rule, the Mayor (who presides over Council meetings) called for and received a vote to cut off Plaintiff's speaking time and remove him. Police officers dragged Plaintiff, who lay prone on the floor in protest of Council's vote, from the meeting hall to applause. He sued, alleging violations of his rights under the U.S. and Virginia Constitutions. The City of Charlottesville asks for judgment in its favor, and Plaintiff requests an injunction against the group defamation rule.

         The central question in this case is: Can a local government-consistent with the Constitution-open a forum for citizens to address their elected representatives on whatever subject they believe merits attention, yet then ban speech it deems to be a “defamatory attack” on groups? Here, the answer is “no.” Because the group defamation rule offends the First and Fourteenth Amendments on its face and as applied to Plaintiff, the Court will enjoin its use.

         The City has one central, substantive defense of the group defamation rule: Apply Steinburg v. Chesterfield County Planning Commission, 527 F.3d 377 (4th Cir. 2008). That case held (with important caveats discussed later) that a content-neutral rule banning “personal attacks” in a limited public forum (i.e., during a planning commission hearing convened solely to discuss whether to defer an agenda item to the next meeting) was not facially unconstitutional.

         The City's reliance on Steinburg is misplaced for several reasons. To name a few: (1) the Supreme Court changed the content-neutrality test for rules about speech in 2015, so Steinburg's 2008 analysis is outdated; (2) the forum here was opened so widely that there were practically no subject-matter limitations, casting significant doubt on both the legitimacy of the group defamation rule and the City's post hoc interest in curtailing allegedly “irrelevant” speech. These and other points result in the application of strict scrutiny to the group defamation rule, which it cannot survive because the City has neither asserted nor shown a compelling governmental interest. Moreover, the City fails to put forth any colorable argument why the group defamation rule is not void for vagueness.

         For these reasons and those that follow, the City's request for dismissal will be denied, and Plaintiff's motion for a preliminary injunction will be granted.


         The City originally sought to dismiss the complaint. (Dkt. 4). Under the applicable standard, the Court would disregard the complaint's legal conclusions and construe the facts in Plaintiff's favor to decide whether they stated a viable legal theory. See generally Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Facts outside the complaint would not be consulted unless they were subject to judicial notice.

         Plaintiff reciprocated by filing a motion for a preliminary injunction. While briefing these motions, the parties liberally filed and cited to various documents and evidence. Though unproblematic for the preliminary injunction, some of these documents-including affidavits- ordinarily would not be considered on a motion to dismiss without converting it to a motion for summary judgment. See Fed. R. Civ. P. 12(d). The Court thus intended to employ a motion-to-dismiss analysis (factually limited to the complaint and a judicially-noticeable video of the June 20th meting[1]), then consult the additional evidence when ruling on injunctive relief.

         At oral argument, however, the City sought to convert its motion to dismiss to one for summary judgment. The Court asked Plaintiff whether he had any additional evidence (beyond what his attorneys previously entered into the record before they withdrew) to submit. He said he did not. (Hr'g Tr. at 2-3).[2]

         Accordingly, the Court will take the City's motion as one for summary judgment. Although the Court must construe the facts in Plaintiff's favor, see Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), here the material facts are not in dispute.

         II. FACTS

         A. The “Matters by the Public” Comment Period during Council Meetings

         At the beginning and end of every Council meeting, the Council holds a “matter by the public” comment period (“public comment period”).[3] (Dkt. 10-1 [hereinafter “Rules”] § D.1). Speakers may speak only once during each public comment period, are limited to three minutes speaking per period, and must directly address the Council. Id., § D.5. The purpose of the public comment period is for a speaker to “[1] to state a position, [2] provide information to the City Council, [3] comment on the services, policies and affairs of the City, or [4] present a matter that, in the speaker's opinion, deserves the attention of [the] City Council.” Id., § D.4.

         Nonetheless, the Council's rules specifically prohibit seven topics or categories of speech, including campaign statements and the promotion of “private business ventures.”[4]Rules, §§ D.9(a)-(b). As most relevant here, the Council prohibits “defamatory attacks on individuals or groups.” Id., § D.9(g). It also forbids using “profanity or vulgar language or gestures.” Id., § D.9(c). These prohibitions are not further defined, and Rule D.9(g) is challenged only insofar as it applies to defamatory attacks on groups, not individuals. Thus, the Court refers to Rule D.9(g) as the “group defamation rule.”

         The Mayor is the presiding officer at Council meetings and is tasked-according to the Rules-with preserving order and decorum. Rules § C.1. Speakers who violate the Council's Rules are supposed to be called to order by the Mayor. If the violation continues, then the Mayor may instruct the speaker to stop talking and sit down. If that instruction is not followed, then the Mayor can order that the speaker be escorted from the meeting room. Id., § D.10. The Mayor can also order removal “for a serious violation of these rules, disruptive behavior, or any words or action that incite violence or disorder . . . .” Id., § D.11.

         According to the Council's clerk, the Council adopted its rules and procedures in February 2016, a few months before the meeting that spawned this case. (Dkt. 17 ¶ 2).

         B. Plaintiff's Views

         Plaintiff is active in civic affairs, having appeared before the Council many times to express his views about important issues in the City. (Dkt. 9 ¶ 2). He believes, based on his readings, that “when a critical mass of Muslims are in a community, there are inevitably threats to the safety of that community.” (Id. ¶ 3). He attended the June 20, 2016 Council meeting and signed up to speak about his “concerns about [the City] receiving an unlimited and unvetted [sic] number of Muslim refugees into the community.” (Id.).

         C. The City Council Meeting of June 20, 2016

         1. Plaintiff's initial comments

         At the June 20th meeting, Mayor Michael Signor introduced the public comment period. (Video 00:18:08). He then read the “guidelines for public comment, ” noting that the Council “welcome[s] public comment” as “an important part of our meeting”:

Please follow these guidelines for public comment. [1] If you're here to speak for a public hearing, please wait to speak on the matter until the report of that item has been presented and the public hearing has been opened. [2] Each speaker has 3 minutes to speak, please give your name and address before beginning your remarks. [3] Please do not interrupt speakers, whether or not you agree with them. [4] Please refrain from using obscenities. If you cannot follow these guidelines you will be escorted from City Council Chambers and not permitted to reenter. [5] And then there's also the other guidelines that are in our procedures that we have. Just pay attention to the timing here, yellow when you're getting close to the end of the 3 minutes and red when the 3 minutes are up.

(00:18:08-00:19:15; see also dkt. 16-2 at ECF 2 (copy of guidelines). These guidelines thus incorporate by reference the Rules, including the group defamation rule.

         The Mayor then recognized Plaintiff as the first speaker. Plaintiff explained his view that-although many “people from the Middle East” are “real good people”-some are not, and thus the Council should undertake “some methodology” or “system” to curtail “unrestricted, unrestrained immigration”:

I have come here again today to speak to you all about my deep concerns about the unrestricted, unrestrained immigration of people from the Middle East, many of whom are real good people. But, unfortunately, some of them are not. And we need to devise some sort of a system to make sure that those people that are doing bad things in Europe do not come here to Pleasantville Charlottesville.
Case in point, I specifically mentioned last time I was here Amarillo, Texas. Remember? You remember? Amarillo, Texas. A Somali Muslim took the manager of a Wal-Mart and several of his associates hostage; a S.W.A.T. team had to come and kill him. That's on the news.
Secondly, it turns out that Amarillo, the Yellow Rose of Texas, has the highest reported incidents of rape in the state of Texas. Want to know why? It's very simple, just like it is everywhere else: because they have the largest ratio of Muslim migrants to indigenous peoples living there. That's why. Just like it is in Dresden, Germany; just like it is in Oslo, Copenhagen; just like it is in Utica, New York; just like it is in Birmingham, Britain; it's always the same thing. When we reach a critical mass of Muslims, then things start to change.
Right now, Pleasantville here hasn't hit that mass. But we're having more and more of those folks coming in here. I'm not saying they shouldn't come here; I'm saying that there needs to be some methodology for making sure that bad people don't come here. And by the way, [Vice-Mayor] Wes [Bellamy], you and I just talked about this. Why does the IRC not bring any Arab Christians into this community? It's only Arab Muslims. Why is that? I wish someone could tell me.
Secondly, and a far more horrendous story, this just came out. Twin Falls, Idaho. It's on their local news. Five-year-old girl kidnapped and raped by three Syrian Muslim boys ages 13, 9, and 8. The 13-year-old raped her; he was old enough to do that. The 9- and 8-year-old, who were not old enough to ejaculate, urinated in her mouth and all over her body.

         (00:19:20-00:21:30). This last comment-the recounting of vivid details of a purported gang rape-drew an interruption from Councilmember Kristin Szakos, who asked if Plaintiff “realized that there are children watching on TV?” Mayor Signer then interjected that “we try to prevent description of vulgarity.”

         Councilmember Szakos's question provoked a brief exchange between herself, Plaintiff, and the Mayor that resulted in Plaintiff's time being extended:

Plaintiff: It's free speech.
Szakos: I'm asking a question.
Plaintiff: Pardon me?
Szakos: Can you just keep in mind that there are children watching on TV.
Plaintiff: Well, I'm keeping in mind that there are children here in this community that need to be protected from your reckless policies.
Mayor Signer: Let's just let him . . .
Plaintiff: So please do not lecture me.
Szakos: I'm not lecturing you.
Plaintiff: Well, please don't. You've just taken some of my valuable time and I want it back.
Szakos: You have it now.
Plaintiff: You have a habit - in fact, you're not even supposed to be talking.
Signer: We'll give you your time back.
Plaintiff: Thank you. Neither of you are supposed to be talking to me. Your rules are that you don't speak to us. That's your rules and you both just broke your rules again. Don't break your rules. If I have to follow your rules, you damn well will follow them also.
Now, later, two young Muslim men - you can imagine how traumatized her parents are, and her grandmother - later two young Muslim men came and threatened the child's mother, warning her not to call the police, which they did do. This is a quote from a retired Department of Homeland Security Officer, Phillip Haney…

(00:21:35-00:22:30). At that point, Plaintiff's extended time expired, and Mayor Signor reminded him that “we have a free speech-we have a free period at the end of the meeting when you can also speak.”

         The initial public comment period remained open for additional citizens, who shared their views without incident on issues such as: city parking; concealed gun possession as protection against “radical Islamic terrorists” who are “vicious animal[s], ” (00:26:00-00:27:00); but see id. 00:33:30-00:35:00 (advocating against concealed carry in private businesses)); toxic mold and water damage in housing; and, pedestrian safety (00:37:00).

         2. Gun control resolution and the second public comment period

         As part of its consent agenda, the Council considered a resolution presented by Councilmember Szakos calling for “statewide and national gun control legislation, and for local control over gun regulation.” (01:55:05-01:58:00). The resolution as introduced and read by Szakos was, in part, a reaction to the then-recent mass shooting at the Pulse nightclub in Orlando, Florida. The Council debated the resolution for approximately thirty minutes before voting unanimously in its favor; it then opening the final public comment period governed by “same rules that were read out at the beginning.” (02:25:00-02:25:50).

         The first three speakers addressed the Council's gun resolution, with the first speaker supporting it and the second two opposing it. (02:25:55-02:30:05). The second speaker decried the supposed “hypocrisy” of the resolution because it sought limitations on guns that citizens might use to protect themselves, but the Council retained armed officers for its protection.

         3. Plaintiff's second comments and forcible removal

         Plaintiff then approached the lectern and began his comments:

. . . Why in the world would we trust any of you? You hypocrites. You talk, you talk about safety. You want public safety, but none of you, none of you have the courage to mention that the shooter[5] happened to be a Muslim.
And, in fact, in the Koran, Mohammed, the deviant monster that he was, said, this is a direct quote from Mohammed the Profit of God. He is a profit of god, the question is, which god is what I'm wondering about. He, himself, said, “Kill the sodomites and those who allow themselves to be sodomized.” That's a quote, almost verbatim, from the Koran.
And so the Muslims, monstrous maniacs that they are, read their holy book and then they go out and perpetrate these horrible crimes.


         The Mayor then interrupted Plaintiff before the conclusion of his time, and the following exchange occurred:

Signer: I'm gonna, I'm gonna interrupt you because we actually prohibit defamatory attacks on . . . groups in our rules. We actually do, and it's duly passed . . .
Plaintiff: But the Constitution guarantees me . . . no, no, no . . . the Constitution guarantees me the right to free speech, and I am allowed to speak my mind, and I will do so.
Signer: We have, we have full authority to . . .
Plaintiff: The Consti. . . no, no, no, your defamatory [sic] rules do not overcome the Constitution.
Signer: I'd like to request his removal.
Plaintiff: I have a right to speak my mind.
Signer: Is there a council vote for removal of Mr. Draego?
[Council votes for removal]
Plaintiff: I have a right to speak.
Signer: Alright.
Plaintiff: The Constitution guarantees me the right to free speech.


         At that point, as police officers approached, Plaintiff lay prone on the ground in front of the lectern. Plaintiff stated from the floor that he would “refuse to be quiet. He's [i.e., the shooter] a Muslim who shot those people and he did it because hates, he hates gays. . . . And shame on you all for violating my constitutional rights. [To the officers] No sir, you can drag me out of here.” The police officers obliged, dragging Plaintiff from the meeting hall by his arms as some citizens in attendance applauded. (02:31:28-02:32:05).

         D. ...

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